Can a lawyer publish a newspaper notice offering to swap information with potential members of a class action?

Plain-English summary

The committee was asked whether a lawyer may publish in a newspaper of general circulation a notice offering "to swap information of possible mutual benefit regarding [a specified] class action." It recognized that, though framed as an exchange of information, the "mutual benefit" reference was calculated to arouse potential class members' interest in obtaining redress, so the question required balancing the lawyer's duty to pursue a client's rights with diligence and zeal against the duty to avoid improper solicitation.

The committee anchored the analysis in DR 2-104(F), which provides that where success in asserting a client's rights in a class-action-type suit depends on the joinder of others, a lawyer "may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder." The committee read that rule as implying approval of contacting potential class members to obtain joinder when success depends on it, while underscoring that the contact must be for the purpose of advancing a legitimate interest of the existing client and not for gaining additional clients. It traced the same principle through its prior opinions: as N.Y. State 124 (1970) put it, an attorney may solicit the cooperation of others similarly situated "provided his motive is not to benefit himself," and N.Y. City 717 (1948) described such solicitation as an exception "tolerated only in the interests of a client and not in a lawyer's own interest," to be conducted in a dignified manner without touting or high-pressure salesmanship.

The committee noted that class actions are no different in principle from other litigation in permitting a lawyer to advance a client's legitimate interests by enlisting others, but that their scale and representational character create both an opportunity for previously forbidden advertising and a real risk of improper solicitation or barratry (citing Bates, In re Primus, and Ohralik). Stressing that resolving the underlying questions of law is not the committee's function, it reminded the bar of the many statutory and judge-made rules bearing on such communications (Judiciary Law secs. 90(2), 479, 482, 485; CPLR 1005(b); Fed. R. Civ. P. 23 and local court rules) and that conduct contrary to law is also unethical (EC 1-5, DR 1-102(A)(4), DR 2-104(A), DR 7-102(A)(8)). Absent an applicable rule of law to the contrary, the lawyer may contact any person with information that may materially benefit the client, but bears "an exceedingly heavy burden" of complying with all applicable rules and may not use such communications to generate a clientele. The question was answered in the affirmative, subject to those qualifications.

Currency note

This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (solicitation is now governed by Rule 7.3 and advertising by Rules 7.1 and 7.2). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer contact potential members of a class to help his existing client?

A: Under this opinion, yes, absent a contrary rule of law. The committee held a lawyer may enlist the cooperation of potential class members to advance the client's legitimate interests, citing DR 2-104(F).

Q: Could the lawyer use those contacts to sign up new clients?

A: No. The committee stressed the contact must serve the existing client, not the lawyer's interest in gaining a clientele, and that the lawyer "may accept, but shall not seek," employment from those contacted.

Q: Did the committee approve the specific newspaper notice?

A: It did not decide the underlying questions of law. It reminded the bar that statutes and court rules (Judiciary Law, CPLR, Rule 23) govern such contact and that the lawyer bears a heavy burden of complying with all of them.

Background and rules framework

The opinion applied DR 2-104(F) (accepting but not seeking employment from those contacted for joinder) against the tension between DR 7-101(A)(1) (zealous pursuit of a client's interests) and DR 2-104(A) (the bar on soliciting employment), reinforced by EC 1-5, DR 1-102(A)(4), and DR 7-102(A)(8) (unlawful conduct is unethical). The current Model Rule analogues are Rule 7.3 (solicitation of clients) and Rule 7.2 (advertising).

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients)
• MR 7.2 (advertising)
• NY EC 1-5; DR 1-102(A)(4), 2-104(A), 2-104(F), 7-101(A)(1), 7-102(A)(8)

Statutes:

• N.Y. Judiciary Law secs. 90(2), 479, 482, 485 (solicitation and related provisions)
• N.Y. CPLR 1005(b); Fed. R. Civ. P. 23 (class actions)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising
• In re Primus, 436 U.S. 412 (1978), and Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), the line between protected association and in-person solicitation

Other opinions cited:

• N.Y. State 124 (1970) and N.Y. City 717 (1948): soliciting cooperation only in the client's interest

See also

• Tenn. Ethics Op. 81-F-7: Contacting Potential Class-Action Joinders
• NY State Bar Op. 507: Mailing an advertisement to nonlawyers
• NY State Bar Op. 508: Promoting a legal seminar by mail

Source

• Landing page: https://nysba.org/opinion-499/